Sadrani v The Queen [2015] VSCA 202

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 16 October 2014, the appellant, who is now aged 45, pleaded guilty to two charges of indecent assault and two charges of sexually penetrating a child under 16. On 23 October 2014, he was sentenced as follows:

Other orders: Forensic sample order, registrable sex offender - life reporting period. Sentenced as a serious sexual offender in respect of charges 3 and 4, s 6F Sentencing Act 1991.

2 The appellant sought leave to appeal on the following grounds:

(a) the sentencing judge erred in finding that the offending constituted 'high level examples of the offence of indecent assault and sexual penetration of a child'; and

(b) the sentences imposed on the individual charges and the orders for cumulation:

(ii) were outside the range reasonably open; and

(iii) resulted in a total effective sentence and non-parole period that were manifestly excessive.

3 A judge of this Court granted leave on both grounds but in respect only of charge 1. The appellant subsequently elected, as he was entitled to do, to renew his application for leave to appeal with respect to the other charges.

4 For reasons which follow, I would dismiss the appeal and refuse the renewed application for leave.

5 Our appeal procedures make provision for a person, whose application for leave has been considered on the papers and refused either wholly or in part, to elect to renew the application before another bench.[1] Since the right of election was established, the number of applicants seeking a hearing in the first instance has dropped substantially, which has in turn reduced cost and improved timeliness in criminal appeals.

6 The availability of the right of election is an important part of the scheme. But where, as here, a judge of this Court concludes that a ground of appeal is not reasonably arguable, and has given written reasons for that conclusion, those advising the applicant must give careful consideration to whether there is a proper basis for renewing the application.

7 A renewal entitles the applicant to a hearing de novo. It is not an appeal from the single judge. But, as other benches of this Court have said,[2] the renewal bench will always read what the judge said, in order to ascertain what view the judge took of the matter and, in a case like this, why leave was granted on a particular ground or sentence and refused on others. As a matter of practicality, if there is to be any real prospect of the renewal bench taking a different view, an applicant who renews an application for leave will need to be able to identify some quite significant matter which has either been misunderstood or misinterpreted or overlooked by the leave judge.

8 And, of course, for the application to be worth renewing, it will not be enough to persuade the new bench that a ground is arguable. The applicant will need to establish that leave should be granted and the appeal allowed. Self-evidently, when a judge has decided - on the basis of the same materials - that the ground is not reasonably arguable, then in most cases it is going to be quite difficult to persuade the new bench to come to such a dramatically different conclusion. The right of election must be exercised with due consideration of these practicalities.

Circumstances of the offending****[3]

9 The victim (K) first met the appellant in February 2002, through a religious prayer group with which his family was affiliated. At the time of the offending, K was 14 years old and the appellant was 32 years old.

10 In September 2002, while K's father and brother were overseas for a family wedding, the appellant and other adult males of the prayer group invited K to a dinner meeting to discuss a new location for the prayer group.

11 After dinner, the appellant drove K home. During the drive the appellant asked K personal and sexually explicit questions about his sexuality and sexual preferences. K confided in the appellant that he was confused regarding his sexuality. The appellant told K that he was homosexual.

12 When they arrived at K's home the appellant stopped the car. He placed his hand on K's inner thigh and penis over his clothing. He then leant over and kissed K on the mouth, pushing his tongue into K's mouth. K said this continued 'for what seemed forever' (charge 1 - indecent assault).

13 After the incident, the appellant and K communicated regularly via email, SMS and instant messaging. They discussed K's sexuality, K's sexual experience and knowledge, and pornography.

14 About a week or two after the first offence, it was arranged for K to go to the appellant's house for a sleepover and to play a new PlayStation game which the appellant had bought. K's parents agreed to the sleepover because the appellant was a trusted member of their religious group. They knew nothing of the first offence, or of the communications between the appellant and K.

15 At the sleepover, the appellant and K ate pizza and played the PlayStation in the appellant's lounge room. Once they finished eating, the appellant sat close to K and began rubbing his hand up and down his back.

16 The appellant led K into his bedroom and began kissing him and rubbing K's penis over his clothing. The appellant directed K to perform oral sex on him (charge 2 - sexual penetration of a child under 16). The appellant then performed oral sex on K (charge 3 - sexual penetration of a child under 16) and, while doing so, touched K's anus with his finger (charge 4 - indecent assault). The appellant then directed K to resume performing oral sex on him (charge 2 continued) until he ejaculated. The appellant had gripped K's head tightly during oral sex and so K had to swallow the ejaculate.

17 The appellant then instructed K to masturbate in front of him. K obeyed and masturbated until ejaculation. The appellant then told K to sleep in the spare room. The appellant told K that what they had done was 'OK' but not to tell anyone else what they had done.

18 The appellant was born in India to a middle class family and had a happy childhood. His father worked and his mother managed the family home. He has an older brother and sister. At the age of 13 or 14, the appellant realised that he was attracted to men. He never spoke to his parents about this, as it was a taboo subject in his culture.

19 The appellant completed high school and enrolled in mechanical engineering at a prestigious polytechnic. He graduated in 1989 and began working as a purchase manager in a medium-sized engineering company.

20 From 1990 to 2000, the appellant worked for various companies in India and in a business which he set up with his father. He then began working for a chemical manufacturing company and became very skilled at using a software program that was just being introduced globally.

21 In 2000, the appellant was assigned a work project in Australia by his company. His brother had moved to Australia in 1999 and so, when the project was finished, the appellant stayed with his brother on holidays. It was suggested to the appellant that he should see some Australian recruitment agencies because his skills were in demand. He did so and was subsequently offered employment by three major companies, ultimately accepting a position with a company which sponsored his visa.

22 The appellant initially lived with his brother before moving into an apartment. In 2002, at the time of the offending, he was 'crushingly lonely'.

23 Shortly after the offending (in September 2002), the appellant met his husband. He was then posted abroad and took his husband with him. In 2005, while overseas, he married his husband in a civil union. In 2006 he settled in Australia. The appellant set up his own consultancy business and was subsequently employed by the company which had developed the software in which he specialised. He had to resign when he was arrested.

24 In 2010 the appellant revealed his sexuality to his family, who told him he was bringing shame on the family. They gave him an ultimatum that he either leave his husband or have no contact with them. The appellant chose his relationship and was cut off, and remains cut off, from his family.

25 The appellant relied upon the report of a clinical psychologist, Dr Rachel MacKenzie. Dr MacKenzie assessed the appellant as scoring higher than average for 'impression management' on the self-deception scale, as he sought to minimise his offending and paint himself in the best possible light. The appellant's limited self-awareness in this respect caused Dr MacKenzie some concerns. The treatment he would benefit from is not available in custody. He has a low risk of re-offending.

26 The sentencing judge was told that the appellant did recall the first incident (charge 1 - indecent assault) and that his recollection of events of the second incident is different to that of the victim's. He had no wish, however, to subject the victim to a trial and so had pleaded guilty and accepted the victim's recollection. His guilty plea was entered at an early, if not the earliest, opportunity, albeit that the matter resolved at the committal and so the victim was in attendance.

27 The appellant was said to be remorseful. This was said to be evidenced by his plea of guilty and in Dr MacKenzie's report.

28 According to the plea submission, the appellant is mortified by the pain and lasting grief he caused. He had asked that a complete apology be forwarded to the victim and his family.

29 K read out his victim impact statement, in which he detailed the impact the appellant's offending had upon him. As a consequence of the offending, K had developed obsessive-compulsive hair pulling (trichotillomania) and depression. K blamed himself for the offending and felt that he could not tell anyone about it because they would not believe him.

30 The sentencing judge included in his reasons the following extract from K's statement:

The following is an excerpt from the thought pad I kept in the peak of my depression. I found myself slowly closing in, working from home instead of the office, not going out of the house et cetera. It's frightening and it's sad and it pains me now just how depressed I was. As a 23 year old now, I am fucked up, I am damaged. I am damaged myself physically and mentally. My outlook on life is bleak and black. There are many many times that I wish I was dead. Later I have lost all self-worth, all self-respect, all self-esteem and self-confidence, I have lost my soul. I still feel filthy, dirty, unwanted, damaged, untouchable, ugly, disgusting and for ever alone. It was comforting to hear the GP on several occasions stress that it was not my fault. I was taken advantage of, I was groomed. It is still difficult for me to accept these two statements or facts I should say.

31 K began seeing a general practitioner and a psychologist and confided in them, and later his family, about the offending. He now describes himself as happy and content. He is still angry about the offending, the betrayal of his trust, and the pain and suffering he endured, but is moving forward.

32 K's mother read out her victim impact statement, in which she detailed the guilt and distress she felt about K's abuse, for which she had received counselling. The biggest impact on her life was the violation of her trust that the appellant would keep K safe. As a result of the offending, her family had lost their belief in their religion and culture. The psychological and emotional effects of the offending on K affected the entire family.

33 As already mentioned, ground 1 complains about the judge's use of the phrase 'high level examples of the offences'. This is, in substance, a complaint that the judge overstated the gravity of the offending. In my opinion, that contention is unsustainable.

34 It would, I think, be a rare case where an appeal would succeed merely because of descriptive phrases used by a judge in sentencing remarks. On an appeal such as this, the Court is ordinarily not concerned with the phraseology used by the judge but rather with whether the sentences can be shown to have been disproportionate to the objective gravity of the offending. After all, a sentence is not a statute, and language of this kind is necessarily imprecise.

35 In any case, a conclusion about the gravity of offending is a conclusion of fact, which could only constitute specific error if the finding made were not reasonably open. For reasons to be given under the next ground, it was reasonably open to this judge to conclude that these were high level examples of the offences. Accordingly, ground 1 fails.

36 It is well-established that the ground of manifest excess is a stringent one, difficult to make good.[4] Sentencing is a task committed to sentencing judges, not this Court, and we will only intervene on this ground if we are persuaded that the conclusion arrived at was not reasonably open to the judge if proper weight had been given to all of the relevant considerations.

37 The Crown's written submission comprehensively - and, in my opinion, correctly - identifies why this was very serious offending. First, there was a significant age difference. The male offender was 32, the victim was 14. In other words, he was more than twice his victim's age.

38 Secondly, and most importantly, this offending represented a very significant breach of trust. The victim entrusted himself to the offender, as someone he knew as an older man and someone who was trusted by his family. It is significant, in my view, that this relationship arose out of a common religious belief and a shared pursuit of that belief.

39 As a result both of the age difference and of the religious setting, this victim would have had no hesitation in going on his own, without his father or brother, to the dinner meeting which resulted in the first incident. And the decision of the parents to allow their son to spend the night with the offender reflects their implicit trust, based on the perfectly understandable view that as fellow participants with the appellant in a religious prayer group, they could have absolute confidence that their child would be safe in his care.

40 Thirdly, the victim was vulnerable. Not only was he young but, as the judge said, the offender 'preyed upon the victim's pubescent sexual turmoil' for his own gratification, having elicited from him that he was uncertain about his own sexuality. He took advantage of that by the indecent assault which occurred and then the subsequent offending.

41 Fourth, there was grooming behaviour of the kind which is rightly denounced by criminal courts. As the Crown points out, the appellant initiated a sexually explicit conversation in the car on the way home before the first indecent assault took place. And, before the second incident, there was a series of sexually explicit communications from the appellant. Once the boy was at his home, he provided him with pizza and a new PlayStation game before moving to the sexual engagement. That was, in my opinion, cynical, deceitful exploitation of a young person, who would take these as signs of friendship. It is precisely why grooming is seen to be so deplorable.

42 Fifthly, the offender told his victim not to tell anyone, plainly realising that what he had done was wrong. Lastly, as already mentioned, the impact of the offending was very severe indeed, both on the victim himself and on his family.

43 When all those matters are taken into account, there is plainly no difficulty with the description, 'high level examples'.

44 There were a number of significant matters in mitigation. The applicant's written submission sets them out comprehensively, as follows:

Plea of guilty;

Positive finding that the applicant was remorseful;

No prior or subsequent convictions or pending matters;

Apology to the victim;

Finding that the offending occurred when the applicant was 'relatively immature and lonely';

Impressive employment history;

Excellent character references that demonstrated the offending was wholly out of character;

Estrangement from his family because of his sexual orientation;

Significant support offered by the applicant's long term partner;

Acceptance of undisputed psychological evidence that the applicant 'represents a low risk of re-offending';

Positive finding that the applicant's prospects of rehabilitation are 'very good'[5] and that the applicant's 'rehabilitation over the past 12 years is a significant mitigatory factor';

Delay of approximately 12 years from the commission of the offence to the reporting of the matter to the police and the sentencing of the applicant;

First term of imprisonment;

Acceptance that the applicant's time in custody would be more burdensome because of his diabetic illness; and

Finding that upon the applicant's release from prison he had the 'ability to be a valuable member of society'.

45 As the Crown points out, the judge took each of these matters into account, while correctly emphasising the importance of general deterrence and denunciation.

46 Reliance was placed on the delay between the offending and the sentencing. But, as counsel for the appellant conceded, it is a common feature of child sexual abuse cases that there is a long delay before the victim feels able to report the abuse. When - as here - the victim's reluctance to report is the reason for the delay, it is of little significance compared with a case where charges are laid and then a lengthy delay intervenes.[6] The relevant question was what was to be said about the appellant's prospects of rehabilitation, given his conduct in the intervening period. His Honour treated the appellant's good conduct in that period as a 'significant mitigatory factor'.

47 As to general deterrence, the fact that offending of this kind can take place at all underlines, in my opinion, the importance of sentences being imposed which demonstrate to the community, and to any person who might contemplate sexual offending against a child, that such offending is and should be unthinkable, that is, not to be contemplated. If it were better understood that offending of this kind will ordinarily attract significant terms of imprisonment, perhaps the County Court would not be dealing as often as it has to deal with sexual offending against children.

48 Like the leave judge, I consider that the manifest excess argument is not reasonably arguable with respect to charges 2-4. As to charge 1, in respect of which leave was granted, I would dismiss the appeal. The conduct giving rise to charge 1 was, in my opinion, a serious example of indecent assault.

49 As already mentioned, the victim was vulnerable and was only, as it were, accessible to the offender because of the breach of trust. That feature affects each of the charges.

50 The conduct itself was very serious. This was, as the summary earlier indicates, a case of the offender forcing his tongue into his victim's mouth. It went on, so the victim said, 'for what seemed forever'. That is, obviously enough, a very intrusive act. It is an act of force, an act of intrusion into the body of the victim, and it was sustained. It was not a momentary touching or a kiss on the cheek. This was sustained, intimate, intrusive conduct and, in my opinion, the sentence of nine months was moderate.

51 The sentences of imprisonment typically imposed for indecent assault can be discerned from the Sentencing Advisory Council's Sentencing Snapshot. The Snapshot is not a guide to the sentence for a particular case but it makes perfectly clear that a sentence of nine months for indecent assault is unremarkable. In the most recent Snapshot (June 2015), the Council found that the median length of imprisonment for this offence was one year and six months; the most common range of imprisonment was from one year to less than two years; and the average over the five year period, set out in figure 4, was typically above one year and six months.[7] So nine months is unremarkable and, given the seriousness of the present instance of indecent assault, not manifestly excessive.

52 Accordingly, I would refuse leave to appeal, and dismiss the appeal.

[1] Criminal Procedure Act 2009 s 315(2); Supreme Court (Criminal Procedure) Rules 2008 r 2.08.

[2] Booth v The Queen [2015] VSCA 51, [121]-[123]; Booysen v The Queen [2014] VSCA 150, [9]; Ayol v The Queen [2014] VSCA 151, [14]; Mifsud v The Queen [2014] VSCA 160, [16].

[3] The content of paras [9]-[32] is based on the Registrar's Neutral Summary.

[4] Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[5] DPP v Sadrani (Unreported, County Court of Victoria, Judge Chettle, 23 October 2014), [19].

[6] See, eg, R v Law [1995] QCA 444; [1996] 2 Qd R 63; R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231; R v Holyoak (1995) 82 A Crim R 502, 508-509 cf R v Merrett, Piggott & Ferrari (2007) VR 392, [35]-[40].

[7] Sentencing Advisory Council, Indecent Assault, Sentencing Snapshot No 177 (June 2015).